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ON
THE ESTABLISHMENT
OF
REAL RIGHT SYSTEM TALLYING
WITH
THE NATIONAL
CONDITIONS
OF CHINA
LIU
WEIMING
Northwest
University of Political Science and Law
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Abstract
The real right system bears close relation to the
economic system of a country. However, for historical
reasons, there has been no Code of Civil Law in China.
Besides, owing to the misperception that legislation should
be made one by one and in general, as far as real right is
concerned, first, the regulations in effect are very simple;
second, separate civil laws are disperse and disorderly;
third, important legal systems are imperfect; lastly, all
the so-called one-by-one-made laws and regulations contain
the marked colour of renzhi, the rule of men. The
legislation of real right lags behind, thus no perfect real
right system has formed, and so far even the term real
right has not been put into formal use. As a result,
although the market economy has been developing very quickly
and the change of property ownership is very brisk, the
economic order of property ownership is unstable and the
demarcation of property right is extremely vague. Therefore,
only by establishing the perfect real right system tallying
with the national conditions of China, regulating the real
rights of all kinds and preventing them from being infringed
upon can China bring the economic effectiveness of property
into play, produce profit and maximize the value of property
now at hand. This paper aims to discuss the necessity,
general principle and approaches of establishing the perfect
real right system tallying with the national conditions of
China.
Necessity
There has been an exciting development regarding the
market economy in China since the open policy was put into
practice, but there exists one serious problem; namely the
demarcation of property rights is extremely vague in the
state-owned enterprises, collective economy and all the
other spheres of economic life throughout the country. As a
result, state-owned and collective property has been lost
and the first of the rich due to the open policy, foreign
investors and overseas Chinese, are all worried about
whether or not their property can really be protected. All
these phenomena are due to the contradictions and conflicts
between the present economic system, cultural and social
background, the imperfect real right system and other social
factors.
Besides, the nature of the
reform of China's economic system lies in the perfection of
socialist public ownership, and the approaches to the reform
and perfection of socialist public ownership are to handle
the relations between the ownership and use of public
property correctly, which must be realized by the perfect
real right system. Therefore, on condition that the
whole-people and collective property ownership is not
infringed upon, only by establishing the perfect real right
system tallying with the national conditions of China to
regulate the real rights of all kinds and prevent them from
being infringed upon can China bring the economic
effectiveness of property into play, produce profit and make
the property now on hand increase in value to the most
extent.
At present, there exist
many real right patterns in China. With the development of
society and the economy, some new real right patterns will
for sure come into being. If these real right patterns are
put into abstract real right concepts to stipulate common
guiding principles generatly, it will not only help people
understand the features of various real rights, but will
also contribute to the formation of China's real right
system, develop and coordinate to the socialist market
economy. The perfect real right system can bring various
real right patterns into the orbit of legality, which will
be extremely necessary for the maintenance of social and
economic order.
Real right law has the
feature of intrinsic law, thus different countries have
different real right law due to different peoples and
historical traditions. However, the international trend of
real right law is softening this feature. How to solve this
contradiction is an important, realistic problem. China is
now making great efforts for this purpose when establishing
and perfecting real right system tallying with national
conditions.
General Principle
Chinese laws in effect, such as General Principles of
the Civil Law, Law of Land Administration, Guaranty
Law, Fishing Law, Law of Urban Real Estate
Administration, Law of Mineral Resources, Maritime
Law and Water Law, etc., all stipulate numerous
right patterns. These patterns can be divided into two
categories: rights concerning civil law and rights
concerning special laws.
Rights concerning civil
law (General Principles of Civil Law):
Property ownership, right to
the use of state-owned land, land operation right by
contract, business operation right of the enterprises owned
by the whole-people, mining right, neighbouring right,
mortgage, right of lien.
Rights concerning
special laws:
Priority of bankrupt
property, mortgage of ship, maritime lien, mortgage, pledge,
right of lien, land-use right, woodland-use right,
prairie-use right, right to exploitation of mineral
resources (prospecting right and mining right), fishing
right, hunting right, water right, etc.
Obviously, the two
categories of rights are unfavourable to the establishment
of a perfect real right system, and can cause many problems,
e.g. 1. these rights are numerous and extensive, but
disperse and disorderly, and besides, their concepts are
repetitious and lack system and common guiding principles;
2. except ownership, mortgage and right of lien, the terms
which are coined go against the real right concepts of
traditional civil law; 3. some important legal systems are
wanting; 4. the term real right is not put into use, etc.
Though the nature and effect of these rights are not clearly
defined, they have the features of real right. So Chinese
experts commonly define these rights as real right. As a
result, suppose that there exists a real right system in
China, but is only substantive and imperfect. Judging from
this, one may well say that the establishment of a real
right system tallying with the national conditions of China
is a heavy task with a long way to go, and of course the
experts express their ideas differently, and are unable to
agree or decide which is right.
One general principle that
should be adhered to is that the intrinsic law feature and
the international trend of real right law are combined with
each other concerning the establishment of a real right
system tallying with the national conditions of China. The
adherence to the feature of intrinsic law means the
combination with the national conditions of China; the
adherence to the international trend means avoiding
complacency conservatism and impracticability. Only under
the guidance of this general principle can genuine real
right system tallying with the national conditions of China
be established. Anything partial will run counter to the
present objective of economic regularity.
The reform of the legal
system towards the end of the Qing Dynasty of China led to
the drafting of a civil code consulting the European legal
systems, which contained the strongest colour of the
intrinsic law because many traditional systems, such as real
right law, were retained. After the foundation of New China,
the civil code drafted by the Republic of China (1912-1949)
was abolished, and the newly-established socialist economic
system, especially the regulations with regard to the
state-owned and collectively-owned land also made the
substantive real right system have too much influence of
intrinsic law.
At present, the open
policy of China urges us to stress the modernisation and
internationalism of the legal system in particular.
Objectively speaking, the so-called real right system of
China has fallen far behind the one of developed countries,
and therefore, we should not be complacent and conservative
and should not reject the successful experience now
available from foreign countries. As to the protection of
intellectual property, China has just spent over ten years
in finishing the work that took developed countries one to
two hundred years. Such a successful example is worth
following.
Today, the international
trend of real right development has not only reduced the
categories of real right gradually, but also made the
contents of real right unified day by day. The real right
system of each country from continental legal system has
been mostly alike except for slight differences, and the
differences between the two legal systems (continental and
common) are being reduced, too. With the development of
international trade, the traffic convenience of the world
and the link between the domestic market and international
market, the international trend of real right development
will become more and more obvious.
The two aspects mentioned
above indicate the general principle which should be
followed to establish the real right system tallying with
the national conditions of China.
Approaches
Real right can be divided into different categories by
different standards. The real right system of Roman law
centered on ownership, and formed abstract real right
system together with usufructuary real right, security real
right and possession. This system was widely adopted by the
countries from the continental legal system and so the real
right in the civil codes of France and Germany were
especially influenced. The two codes, especially the German
one, well adopted and developed the real right system of
Roman law and became the well-conceived and perfect codes.
They themselves formed unique styles and had a deep
influence on the real right system of other countries. The
majority of Chinese scholars suggest that this should become
a frame or common guiding principle to reduce and abstractly
generalize the given real right patterns of China. However
the scholars have quite different ideas as to which of the
given real right patterns should be adopted and what legal
terms should be used to generalize, especially the disputes
on usufructuary real right.
The legal system of New
China was established on the basis of smashing the old legal
system, and so it lacks inheritance. The inherent defect has
surely resulted in the imperfect real right system,
disorderly real right patterns and repetitious concepts.
Now, attention should be paid to the fact that the
transformation from ownership-centered to use-centered has
made usufructuary real right become the core of modern real
right law. With the development of market economy, in order
to make the most of property value, it is not necessary for
owners themselves to possess the property, use it and profit
from it. They can provide the use value of ownership for
others at their disposal, and both parties can gain
reasonable benefits from the property. This is the so-called
the value trend of real right. Therefore, under the present
circumstances, first, China should adapt itself to the value
trend of real right, and take usufructuary real right as the
center to form a complete real right system, together with
ownership, security real right and possession. Second, it
should place emphasis on the perfection of usufructuary real
right system because usufructuary real right is changeable
with the changes of society. Third, it should draw on actual
conditions of economic life, take the practical needs of
market economy development into account, and at the same
time maintain the intrinsic law feature of real right law on
the basis of elimination of unnecessary old real right.
Finally, in order to adapt itself to the international trend
of real right, it should reduce and abstractly generalize
the existing real right patterns and the ones put forward by
Chinese scholars to stipulate the common guiding principles,
and at the same time borrow the international commonly-used
legislation and customs to integrate with the international
advanced legislation. In view of the above mentioned facts,
the real right system tallying with the national conditions
of China is as follows:
The diagram mentioned
above shows that besides possession, jus in re
propria, jus in re aliena define the nature and effect
of ownership, usufructuary real right and security
real right, and further the definitions of their right
limits.
1. Ownership of Chinese
civil law can be divided into state ownership, collective
ownership and individual ownership, based on the nature of
property and the different right subjects. On the
establishment of ownership system, China should maintain the
one-thing-one-right principle and the spirit of
equality, and correctly handle the relationships in all
aspects in combination with the existing regulations and the
economic system reform in order to meet the needs of the
property possession order and property exchange order of
socialist market economy, and adapt itself to the trend of international
legislation.
2. Usufructuary real right
system of China is very disperse and disorderly, and there
are coined legal terms whose concepts are vague. For this
reason, it cannot guide the economic life well. By
generalizing it abstractly, it can be systematized as
follows: superficies, farming right, praediorum servitus and
usus fructus. The concept of the existing term land-use
right does not define the purpose of use. It is not clear
whether it is real right or obligatory right. If the purpose
of use is taken as the standard, land-use right can be
divided into the following two: superficies (for the purpose
of building houses or other structures, etc.) and farming
right (for the purpose of cultivation, breading and
livestock-raising). The concept of superficies is pithy,
clear and consistent with the current legislation of foreign
countries. In China, land is owned by the state and
collectives, but social organisations also lead to the
relations of rights and obligations between land owners and
users when they use the state-owned and collectively-owned
land to build houses or plants by law or by contract. In
Chinese law, right to the use of residence base, land-use
right and right to the use of a site for Chinese-foreign
joint ventures all belong to the realm of superficies in
nature. The use of superficies can make the nature of the
right to the use of state-owned land clear, separate the
possession and the use of state-owned land from cach other,
and make land resources developed, used and safeguarded
reasonably, Superficies is usually obtained payment, without
payment sometimes, permanently or periodically.
Farming right means the
land-use right of agriculture, forest, stock-raising and
fishing as production and operation. Since China's open
policy, contract letting parties throughout China have
frequently been tearing up contracts arbitrarily, so that
the lawful rights and interests of contractors are seriously
infringed upon. This phenomenon bears close relation to the
fact that contracts belong to the relation of obligatory
right, and the right to use obtained by contractors belongs
to obligatory right. If real right relation or real right
system is used and contract relation is replaced by
usufructuary real right, farming right can become part of
usufructuary real right and accordingly, the arbitrary
infringement upon contractors' interests can be eliminated.
Praediorum servitus is the
real right to use another person's land for the convenience
of using one‘s own land. In China, the biggest problem is
to take praediorum servitus for a neighbouring relation or
neighbouring right. Praediorum servitus has something in
common with neighbouring right in respect of either
conditions and effect or the rights and obligations caused
by regulating the use of neighbouring land, but their
demarcation is clear-cut. First, neighbouring right is a
statutory right and the extension or restriction of
ownership. It belongs to the realm of jus in re propria,
while praediorum servitus usually refers to an appointed
right, which belongs to the realm of jus in reliena. Second,
neighbouring right is the minimum regulation of land-use
relation, while praediorum servitus is the relatively
extensive regulation of rights and obligations beyond the
neighbouring regulation. Third, neighbouring right is
applicable either to the neighbouring relation of land or to
the neighbouring relation of houses and buildings, while
praediorum servitus is only applicable to land owners and
users. Fourth, neighbouring right must presuppose
neighbouring land, while praediorum servitus need not so.
Lastly. the contents of neighbouring right are many-sided,
while the contents of praediorum servitus is to use another
person's land for the convenience of using one's own land.
Based on the differenccs mentioned above, neighbouring right
should be brought into ownership, while praediorum servitus
should be brought into usufructuary real right in order to
meet the needs of various land-use relations in practical
life.
Usus fructus refers to the
right to use and make a profit of state-owned or
collectively-owned natural resources, including mining
right, forest-cutting right, fishery right, hunting right,
water right and prairie-use right, etc. The purpose of
bringing these rights into usus fructus is to reduce the
number of the norms in special laws, which will give the
consideration to the characteristics of the strong
practicability and quick changes in special laws, and make
the legislation of real right and the system of real right
harmonious and unified.
3. Since the promulgation
and enforcement of Guaranty Law, the basic pattern of
security real right system has been set up, so it is not
necessary to prove the necessity of security real right.
Besides, Chinese scholars have no different ideas about it.
The contents of security real right contain mortgage, pledge
and lien. The maritime lien of Maritime Law can be
brought into the system of special laws.
4. The existing
legislation of China lacks over-all and unitary regulation
of law as for the relations of possession over a thing. This
is the gap that urgently needs filling. Possession is a kind
of exterior de facto condition, and has some effect of legal
protection, so possession system should become an important
system of Chinese ciyil law.
As for emphyteusis,
China's Taiwan changed it into farming right in l993 because
emphyteusis goes against current agriculture policy and has
been seldom used in practice nowadays. The mainland of China
should take warning from it and refuse to accept it. As for
impawn right, whether impawm right system should be adopted,
there are some disputes and the arguments of both sides are
quite opposite. Because impawn right and impawn
are understood differently in China and the ideas of both
sides have their strengths and weaknesses, there is no harm
in bringing impawn right into law of debt.
REFERENCES
- Cai Dingjian: Reflection on New China's Smashing
Old Legal System. Law Science, No.10. 1997.
- Guo Mingrui: On the Few Legal Problems Concerning
Land-Use Right. Research on the Theoretical Problems
of Chinese Civil Law and Economic Law, Law Press, 1991.
- Liang Huixing: Research on the Theory, Guiding
Cases and Legislation of Civil Law. Press of
University of Politics and Law of China, 1993.
- Liang Huixing: Real Right Law. Law Press, 1997.
- Qian Mingxing: Principles of Real Right Law.
Beijing University Press, 1994.
- Research Group of Real Right Law of Law Research
Institute, Chinese Academy of Social Sciences: Basic
Thinking of Drawing Up Real Right Law of China.
Research of Law Science, No.3. 1995.
- Shi Haoming: Research on the System of Usufructuary
Real Right. Social Sciences of Jiangsu, No.6. 1996.
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Chinese Civil Law. Law Science, No.6. 1997.
- Zheng Chengsi: Thinking from the Court Adjudication
and Administrative Adjudgement Concerning the Picture Wu
Song Kills a Tiger. Law Science. No.10. 1997.
Published in:
SEPARATUM EX
ANNALES UNIVERSITATIS SCIENTIARIUM
BUDAPESTINENSIS
DE ROLANDO E?TV?S NOMINATAE.
SECTIO
IURIDICA.TOMUS XLI-XLII.2000-2001.
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